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Russell Road Food and Beverage, LLC v. Spencer

United States Court of Appeals, Ninth Circuit

July 22, 2016

Russell Road Food and Beverage, LLC, a Nevada limited liability company, Plaintiff-Counter-Defendant-Appellee,
v.
Frank Spencer, an individual; Crazy Horse Consulting, Inc., an Ohio corporation, Defendants-Counter-Claimants-Appellants.

          Submitted May 12, 2016 [*] San Francisco, California

         Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding D.C. No. 2:12-cv-01514-LRH-GWF

          Kaleb D. Anderson; Lipson, Neilson, Cole, Seltzer, Garin, P.C., Las Vegas, Nevada; Harold M. Schwarz, III; Stark & Knoll Co., LPA, Akron, Ohio; for Defendants-Appellants.

          Bruno Tarabichi, Owens Tarabichi LLP, San Jose, California; for Plaintiff-Appellee.

          Before: John T. Noonan, Kim McLane Wardlaw, and Richard A. Paez, Circuit Judges.

         SUMMARY [**]

         Trademark

         Affirming the district court's summary judgment, the panel held that the plaintiff was the assignee of a valid trademark co-existence agreement entered into with the former owner of the registered mark "Crazy Horse" and therefore had the right to use the mark.

          OPINION

          WARDLAW, Circuit Judge:

         Once associated with a legendary Native American leader, "Crazy Horse" is now a registered trademark for "entertainment services, namely, exotic dance performances." We must decide whether Russell Road's use of the mark "Crazy Horse III" for its Las Vegas strip club infringes defendants Frank Spencer and Crazy Horse Consulting's rights to the trademark "Crazy Horse." The district court granted summary judgment to Russell Road, holding that it has the right to use the mark because it is the assignee of a valid trademark co-existence agreement entered into with the former owner of the registered Crazy Horse mark. We agree, and therefore affirm the entry of summary judgment in favor of Russell Road.

         I.

         The mark "Crazy Horse" has been associated with adult entertainment since Alain Bernardin opened the celebrated Crazy Horse Saloon off the Champs-Elysees in 1951. And it has been associated with heated trademark disputes since Bernardin sued a London imitator in 1967. See Bernardin v. Pavilion Properties, 19 R.P.C. 581 (1967).[1] In the United States, individuals and corporations have used the "Crazy Horse" brand for motorcycle gear, whiskey, rifles, and, of course, strip and exotic dance clubs. Since at least the 1970s, Crazy Horse nightclubs have opened everywhere from Anchorage, Alaska to Pompano Beach, Florida.

         This case concerns the nature of the right to the trademark, as distinguished from the trademark owners' assignment of the right to peaceably use the mark; here, a "trademark co-existence agreement." Although the parties' interactions and arrangements are byzantine, ultimately the parties' respective rights are clear.

         In January 2006, Carl Reid, a longtime owner of strip clubs in the Carolinas, successfully registered the marks "Crazy Horse" and "Pure Gold's Crazy Horse" for "entertainment services, namely, exotic dance performances" with the United States Patent and Trademark Office ("USPTO"). Years later, Russell Road attempted to register the mark "Crazy Horse III Gentlemen's Club at the Playground" for its strip club in Las Vegas, while Frank Spencer attempted to register the "Crazy Horse" mark for his chain of strip clubs in Ohio. The USPTO refused each of these applications under 15 U.S.C. § 1052(d) because it found a likelihood of confusion with Reid's ...


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